[Congressional Record Volume 146, Number 110 (Monday, September 18, 2000)]
[House]
[Pages H7697-H7699]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMERICA'S ROLE IN THE UNITED NATIONS
The SPEAKER pro tempore. Under a previous order of the House, the
gentleman from Texas (Mr. Paul) is recognized for 5 minutes.
Mr. PAUL. Mr. Speaker, over a half a century has transpired since the
United States of America became a member of the United Nations.
Purporting to act pursuant to the treaty powers of the Constitution,
the President of the United States signed, and the United States Senate
ratified, the charter of the United Nations. Yet, the debate in
government circles over the United Nations' charter scarcely has
touched on the question of the constitutional power of the United
States to enter such an agreement. Instead, the only questions
addressed concerned the respective roles that the President and
Congress would assume upon the implementation of that charter.
On the one hand, some proposed that once the charter of the United
States was ratified, the President of the United States would act
independently of Congress pursuant to his executive prerogatives to
conduct the foreign affairs of the Nation. Others insisted, however,
that the Congress played a major role of defining foreign policy,
especially because that policy implicated the power to declare war, a
subject reserved strictly to Congress by Article I, Section 8 of the
U.S. Constitution.
At first, it appeared that Congress would take control of America's
participation in the United Nations. But in the enactment of the United
Nations' participation act on December 20, 1945, Congress laid down
several rules by which America's participation would be governed. Among
those rules was the requirement that before the President of the United
States could deploy United States Armed Forces in service of the United
Nations, he was required to submit to Congress for its specific
approval the numbers and types of Armed Forces, their degree of
readiness and general location, and the nature of the facilities and
assistance including rights of passage to be made available to the
United Nations Security Council on its call for the purpose of
maintaining international peace and security.
Since the passage of the United Nations Participation Act, however,
congressional control of presidential foreign policy initiatives, in
cooperation with the United Nations, has been more theoretical than
real. Presidents from Truman to the current President have again and
again presented Congress with already-begun military actions, thus
forcing Congress's hand to support United States troops or risk the
accusation of having put the Nation's servicemen and service women in
unnecessary danger. Instead of seeking congressional approval of the
use of the United States Armed Forces in service of the United Nations,
presidents from Truman to Clinton have used the United Nations Security
Council as a substitute for congressional authorization of the
deployment of United States Armed Forces in that service.
This transfer of power from Congress to the United Nations has not,
however, been limited to the power to make war. Increasingly,
Presidents are using the U.N. not only to implement foreign policy in
pursuit of international peace, but also domestic policy in pursuit of
international, environmental, economic, education, social welfare and
human rights policy, both in derogation of the legislative prerogatives
of Congress and of the 50 State legislatures, and further in derogation
of the rights of the American people to constitute their own civil
order.
As Cornell University government professor Jeremy Rabkin has
observed, although the U.N. charter specifies that none of its
provisions ``shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any State,''
nothing has ever been found so ``essentially domestic'' as to exclude
U.N. intrusions.
The release in July 2000 of the U.N. Human Development Report
provides unmistakable evidence of the universality of the United
Nations' jurisdictional claims. Boldly proclaiming that global
integration is eroding national borders, the report calls for the
implementation and, if necessary, the imposition of global standards of
economic and social justice by international agencies and tribunals. In
a special contribution endorsing this call for the globalization of
domestic policymaking, United Nations Secretary General Kofi Annan
wrote, ``Above all, we have committed ourselves to the idea that no
individual shall have his or her human rights abused or ignored. The
idea is enshrined in the charter of the United Nations. The United
Nations' achievements in the area of human rights over the last 50
years are rooted in the universal acceptance of those rights enumerated
in the Universal Declaration of Rights. Emerging slowly, but I believe,
surely, is an international norm,'' and this is Annan's words, ``that
must and will take precedence over concerns of State sovereignty.''
Although such a wholesale transfer of United States sovereignty to
the United Nations as envisioned by Secretary General Annan has not yet
come to pass, it will, unless Congress takes action.
Mr. Speaker, H.R. 1146, the American Sovereignty Restoration Act is
my answer to this problem.
To date, Congress has attempted to curb the abuse of power of the
United Nations by urging the United Nations to reform itself,
threatening the nonpayment of assessments and dues allegedly owed by
the United States and thereby cutting off the United Nations' major
source of funds. America's problems with the United Nations will not,
however, be solved by such reform measures. The threat posed by the
United Nations to the sovereignty of the United States and independence
is not that the United Nations is currently plagued by a bloated and
irresponsible international bureaucracy. Rather, the threat arises from
the United Nation's Charter which--from the beginning--was a threat to
sovereignty protections in the U.S. Constitution. The American people
have not, however, approved of the Charter of the United Nations which,
by its nature, cannot be the supreme law of the land for it was never
``made under the Authority of the U.S.,'' as required by Article VI.
H.R. 1146--The American Sovereignty Restoration Act of 1999 is my
solution to the continued abuses of the United Nations. The U.S.
Congress can remedy its earlier unconstitutional action of embracing
the Charter of the United Nations by enacting H.R. 1146. The U.S.
Congress, by passing H.R. 1146, and the U.S. president, by signing H.R.
1146, will heed the wise counsel of our first president, George
Washington, when he advised his countrymen to ``steer clear of
permanent alliances with any portion of the foreign world,'' lest the
nation's security and liberties be compromised by endless and
overriding international commitments.
An excerpt from Herbert W. Titus' Constitutional Analysis of the United
Nations
In considering the recent United Nations meetings and the
United States' relation to that organization and its affront
to U.S. sovereignty, we would all do well to read carefully
Professor Herbert W. Titus' paper on the United Nations of
which I have provided this excerpt:
It is commonly assumed that the Charter of the United
Nations is a treaty. It is not. Instead, the Charter of the
United Nations is a constitution. As such, it is
illegitimate, having created a supranational government,
deriving its powers not from the consent of the governed (the
people of the United States of America and peoples of other
member nations) but from the consent of the peoples'
government officials who have no authority to bind either the
American people nor any other nation's people to any terms of
the Charter of the United Nations.
By definition, a treaty is a contract between or among
independent and sovereign nations, obligatory on the
signatories only when made by competent governing authorities
in accordance with the powers constitutionally conferred upon
them. I Kent, Commentaries on American Law 163 (1826);
Burdick, The Law of the American Constitution section 34
(1922) Even the United Nations Treaty Collection states that
a treaty is (1)
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a binding instrument creating legal rights and duties (2)
concluded by states or international organizations with
treaty-making power (3) governed by international law.
By contrast, a charter is a constitution creating a civil
government for a unified nation or nations and establishing
the authority of that government. Although the United Nations
Treaty Collection defines a ``charter'' as a ``constituent
treaty,'' leading international political authorities state
that ``[t]he use of the word `Charter' [in reference to the
founding document of the United Nations] . . . emphasizes the
constitutional nature of this instrument.'' Thus, the
preamble to the Charter of the United Nations declares
``that the Peoples of the United Nations have resolved to
combine their efforts to accomplish certain aims by
certain means.'' The Charter of the United Nations: A
Commentary 46 (B. Simma, ed.) (Oxford Univ. Press, NY:
1995) (Hereinafter U.N. Charter Commentary). Consistent
with this view, leading international legal authorities
declare that the law of the Charter of the United Nations
which governs the authority of the United Nations General
Assembly and the United Nations Security Council is
``similar . . . to national constitutional law,''
proclaiming that ``because of its status as a constitution
for the world community,'' the Charter of the United
Nations must be construed broadly, making way for
``implied powers'' to carry out the United Nations'
``comprehensive scope of duties, especially the
maintenance of international peace and security and its
orientation towards international public welfare.'' Id. at
27
The United Nations Treaty Collection confirms the
appropriateness of this ``constitutional interpretive''
approach to the Charter of the United Nations with its
statement that the charter may be traced ``back to the Magna
Carta (the Great Charter) of 1215,'' a national
constitutional document. As a constitutional document, the
Magna Carta not only bound the original signatories, the
English barons and the king, but all subsequent English
rulers, including Parliament, conferring upon all Englishmen
certain rights that five hundred years later were claimed and
exercised by the English people who had colonized America.
A charter, then, is a covenant of the people and the civil
rulers of a nation in perpetuity. Sources of Our Liberties 1-
10 (R. Perry, ed.) (American Bar Foundation: 1978) As Article
1 of Magna Carta, puts it:
We have granted moreover to all free men of our kingdom for
us and our heirs forever all liberties written below, to be
had and holden by themselves and their heirs from us and our
heirs.
In like manner, the Charter of the United Nations is
considered to be a permanent ``constitution for the universal
society,'' and consequently, to be construed in accordance
with its broad and unchanging ends but in such a way as to
meet changing times and changing relations among the nations
and peoples of the world. U.N. Charter Commentary at 28-44.
According to the American political and legal tradition and
the universal principles of constitution making, a perpetual
civil covenant or constitution, obligatory on the people and
their rulers throughout the generations, must, first, be
proposed in the name of the people and, thereafter, ratified
by the people's representatives elected and assembled for the
sole purpose of passing on the terms of a proposed covenant.
See 4 The Founders' Constitution 647-58 (P. Kurland and R.
Lerner, eds.) (Univ. Chicago. Press: 1985). Thus, the
preamble of the Constitution of the United States of America
begins with ``We the People of the United States'' and
Article VII provides for ratification by state conventions
composed of representatives of the people elected solely for
that purpose. Sources of Our Liberties 408, 416, 418-21 (R.
Perry, ed.) (ABA Foundation, Chicago: 1978)
Taking advantage of the universal appeal of the American
constitutional tradition, the preamble of the Charter of the
United Nations opens with ``We the peoples of the United
Nations.'' But, unlike the Constitution of the United States
of America, the Charter of the United Nations does not call
for ratification by conventions of the elected
representatives of the people of the signatory nations.
Rather, Article 110 of the Charter of the United Nations
provides for ratification ``by the signatory states in
accordance with their respective constitutional processes.''
Such a ratification process would have been politically and
legally appropriate if the charter were a mere treaty. But
the Charter of the United Nations is not a treaty; it is a
constitution.
First of all, Charter of the United Nations, executed as an
agreement in the name of the people, legally and politically
displaced previously binding agreements upon the signatory
nations. Article 103 provides that ``[i]n the event of a
conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under
any other international agreement, their obligations under
the present Charter shall prevail.'' Because the 1787
Constitution of the United States of America would displace
the previously adopted Articles of Confederation under which
the United States was being governed, the drafters recognized
that only if the elected representatives of the people at a
constitutional convention ratified the proposed constitution,
could it be lawfully adopted as a constitution. Otherwise,
the Constitution of the United States of America would be,
legally and politically, a treaty which could be altered by
any state's legislature as it saw fit. The Founders'
Constitution, supra, at 648-52.
Second, an agreement made in the name of the people creates
a perpetual union, subject to dissolution only upon proof of
breach of covenant by the governing authorities whereupon the
people are entitled to reconstitute a new government on such
terms and for such duration as the people see fit. By
contrast, an agreement made in the name of nations creates
only a contractual obligation, subject to change when any
signatory nation decides that the obligation is no longer
advantageous or suitable. Thus, a treaty may be altered by
valid statute enacted by a signatory nation, but a
constitution may be altered only by a special amendatory
process provided for in that document. Id. at 652.
Article V of the Constitution of the United States of
America spells out that amendment process, providing two
methods for adopting constitutional changes, neither of which
requires unanimous consent of the states of the Union. Had
the Constitution of the United States of America been a
treaty, such unanimous consent would have been required.
Similarly, the Charter of the United Nations may be amended
without the unanimous consent of its member states. According
to Article 108 of the Charter of the United Nations,
amendments may be proposed by a vote of two-thirds of the
United Nations General Assembly and may become effective upon
ratification by a vote of two-thirds of the members of the
United Nations, including all the permanent members of the
United Nations Security Council. According to Article 109 of
the Charter of the United Nations, a special conference of
members of the United Nations may be called ``for the purpose
of reviewing the present Charter'' and any changes proposed
by the conference may ``take effect when ratified by two-
thirds of the Members of the United Nations including all the
permanent members of the Security Council.'' Once an
amendment to the Charter of the United Nations is adopted
then that amendment ``shall come into force for all Members
of the United Nations,'' even those nations who did not
ratify the amendment, just as an amendment to the
Constitution of the United States of America is effective in
all of the states, even though the legislature of a state or
a convention of a state refused to ratify. Such an amendment
process is totally foreign to a treaty. See Id., at 575-84.
Third, the authority to enter into an agreement made in the
name of the people cannot be politically or legally limited
by any preexisting constitution, treaty, alliance, or
instructions. An agreement made in the name of a nation,
however, may not contradict the authority granted to the
governing powers and, thus, is so limited. For example, the
people ratified the Constitution of the United States of
America notwithstanding the fact that the constitutional
proposal had been made in disregard to specific instructions
to amend the Articles of Confederation, not to displace them.
See Sources of Our Liberties 399-403 (R. Perry ed.)
(American Bar Foundation: 1972). As George Mason observed
at the Constitutional Convention in 1787, ``Legislatures
have no power to ratify'' a plan changing the form of
government, only ``the people'' have such power. 4 The
Founders' Constitution, supra, at 651.
As a direct consequence of this original power of the
people to constitute a new government, the Congress under the
new constitution was authorized to admit new states to join
the original 13 states without submitting the admission of
each state to the 13 original states. In like manner, the
Charter of the United Nations, forged in the name of the
``peoples'' of those nations, established a new international
government with independent powers to admit to membership
whichever nations the United Nations governing authorities
chose without submitting such admissions to each individual
member nation for ratification. See Charter of the United
Nations, Article 4, Section 2. No treaty could legitimately
confer upon the United Nations General Assembly such powers
and remain within the legal and political definition of a
treaty.
By invoking the name of the ``peoples of the United
Nations,'' then, the Charter of the United Nations envisioned
a new constitution creating a new civil order capable of not
only imposing obligations upon the subscribing nations, but
also imposing obligations directly upon the peoples of those
nations. In his special contribution to the United Nations
Human Development Report 2000, United Nations Secretary-
General Annan made this claim crystal clear:
Even though we are an organization of Member States, the
rights and ideals the United Nations exists to protect are
those of the peoples. No government has the right to hide
behind national sovereignty in order to violate the human
rights or fundamental freedoms of its peoples. Human
Development Report 2000 31 (July 2000) [Emphasis added.]
While no previous United Nations' secretary general has
been so bold, Annan's proclamation of universal jurisdiction
over ``human rights and fundamental freedoms'' simply
reflects the preamble of the Charter of the United Nations
which contemplated a future in which the United Nations
operates in perpetuity ``to save succeeding generations from
the scourge of ware . . . to reaffirm faith in fundamental
human rights . . . to establish conditions under which
justice . . . can be maintained, and to promote social
progress and between standards of life in
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larger freedom.'' Such lofty goals and objectives are
comparable to those found in the preamble to the Constitution
of the United States of America: ``to . . . establish
Justice, insure domestic tranquility, provide for the common
defense, promote the general welfare and secure the Blessings
of liberty to ourselves and our posterity . . .''
There is, however, one difference that must not be
overlooked. The Constitution of the United States of America
is a legitimate constitution, having been submitted directly
to the people for ratification by their representatives
elected and assembled solely for the purpose of passing on
the terms of that document. The Charter of the United
Nations, on the other hand, is an illegitimate constitution,
having only been submitted to the Untied States Senate for
ratification as a treaty. Thus, the Charter of the United
Nations, not being a treaty, cannot be made the supreme law
of our land by compliance with Article II, Section 2 of
Constitution of the United States of America. Therefore, the
Charter of the United Nations is neither politically nor
legally binding upon the United States of America or upon its
people.
Even considering the Charter of the United Nations as a
treaty does not save it. The Charter of the United Nations
would still be constitutionally illegitimate and void,
because it transgresses the Constitution of the United States
of America in three major respects:
(1) It unconstitutionally delegates the legislative power
of Congress to initiate war and the executive power of the
president to conduct war to the United Nation, a foreign
entity;
(2) It unconstitutionally transfers the exclusive power to
originate revenue-raising measures from the United States
House of Representatives to the United Nations General
Assembly; and
(3) It unconstitutionally robs the states of powers
reserved to them by the Tenth Amendment of the Constitution
of the United States of America.
It is time for this Congress to return to these time-
honored American principles of liberty; not to put their hope
in the promise of some international organization like the
United Nations which would replace the Constitution of the
United States of America with its Universal Declaration of
Human Rights, thereby compromising American liberties in
favor of government-imposed programs designed to enhance the
economic and social well-being of peoples all around the
world.
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